THE IMMIGRATION ACTS' JONATHAN HOLMES Adjudicator. Mr KAMIL MYHAMMED ABDULL QADIR. And. SECRETARY OF STATE FOR THE HOME DEPARTMENT ResQondent

Transcription

1 In The Immigration Authority Appeal Number HXl43892/2003 THE IMMIGRATION ACTS' Heard at North Shields On 26 August 2003 / ' Determination Promulgated,.~i. ~.~P.~.QQ3... Prepared on 27 August BEFORE JONATHAN HOLMES Adjudicator BETWEEN Mr KAMIL MYHAMMED ABDULL QADIR And AQQellant SECRETARY OF STATE FOR THE HOME DEPARTMENT ResQondent Representation: For the Appellant: Ms Leach For the Respondent: Ms McSween (HOPO) DETERMINATION AND REASONS 1. The Appellant says that he was born on 23 August 1982 and that he is a male citizen of Somalia. He attended the hearing of his appeal and gave evidence to me through an interpreter.

2 Issues 2. The Appellant says that he entered the United Kingdom clandestinely on March He sought asylum on 31 March / On 29 May 2003 the Respondent issued to the Appellant a Notice of Decision to refuse under paragraph 336 of HC 395 (as amended) an application for asylum and to issue Removal Directions to the Appellant, as an illegal entrant as defined in s33(1) of the Immigration Act By letter of 22 May 2002 the Respondent gave to the Appellant his reasons for refusal of the application for asylum. As the date of decision post-dated 1 April 2003 the Appellant has available to him the grounds mentioned in Section 84 of the 2003 Act. He has raised the following matters, which it falls to me to determine; (i) (ii) (iii) (iv) 5. Asylum Article 2 Article 3 Artie1e 5 The Appellant in his appeal under s69(5) of the Immigration & Asylum Act 1999 says that he is a refugee, and that his removal to Somalia would be a breach of the United Kingdom's obligations under the 1951 Geneva Convention relating to the status of refugees and the Protocol thereto (the 1951 Convention) and further that it would be a breach of the United Kingdom's obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms - now incorporated into English Law by the provisions of the Human Rights Act Asylum Appeal 6. In asylum appeals the burden of proof is upon the Appellant. The test is whether viewed objectively he has a well founded fear of persecution for a Convention reason, having looked at the case in the round, and having judged the situation at the time of the hearing of the appeal. The standard of proof is a reasonable degree of likelihood, which can also be described

3 as a reasonable chance or a serious possibility, although those descriptions are the same Sivalrumaran 1988 JAR The Appellant's claim is based on race. He says that he is a member of the I, Reer Faqi, and thus the Reer Hamar clan. He says that he would be persecuted in the event of a return to Somalia as a result of his membership ofthat clan. The Atmellant's evidence 8. The Appellant's witness statement [D 1] records him as claiming membership of the Rer Faqi, part of the Benadiri. He says that they are more Arabic in appearance than other Somali. 9. The interview record [C4] shows the Appellant made the same claim on 19 I May 2003 [QI0/11]. Asked about the Benadiri however he said that it meant the Reer Hamar and the minority clans that live in Benadir [QI2]. He said that the Rer Faqi are divided into four sub clans, and gave four 'names [Qi3]..,He ga~e four,names for the Reer Hamar ~lans of the ' Benadiri [QI4]. He did not know any of th~ Shangshi groups [QI5]. He thought that the Benadiri intermarried between themselves without any exceptions[qi6-7]. 10. I heard evidence from one Ali Hagi Mohammed Sadik who said that he was uncle of the Appellant. Although a full time employee of the Royal Mail he gave evidence to me through an interpreter. He told me that both he and the Appellant were citizens of Somalia and members of the Reer Faqi. He told me that he had left Somalia in July 1994, and had been accepted as a refugee from the civil war that started in 1990, and that he had now acquired British citizenship. 11. A letter was produced dated 18 August 2003 said to be from the President of the Association of Benadir of Somalia in Switzerland, signed by one "Abukar Mohammed Sadiq". He purported to certify that the Appellant was a Somali national, a member of the Reer Faqay, and the son of his nephew.

4 12. There is objective evidence before me in the form of the Report on Minority Groups in Somalia by the Joint British, Danish & Dutch fact finding mission to Kenya of September 2000, and the April 2003 Cipu report. It is clear from the former [p42:'51] that although the Ashraf identify themselves as part of the Benadiri, and 'are accepted as such, that they do not identify themselves as part of the Hamar group, and are no. accepted as such. They are a distinct clan community so that the Benadiri can be broadly grouped as comprising Hamar, Shangani, Merka, and Ashraf. In turn the first three comprise both sub-groups and sub-subgroups. 13. The Hamar accept and are accepted as comprising the Qalmashube, the Dhabar Weyne, the Shanshiya, the Morshc;:,the Bandhawaw, and the Reer Faqi as sub clans. 14. The Shangani accept and are accepted as comprising as sub groups the Amudi, the Baa Fadal, the Reer Sheich and the Abakarow. Findings of Fact I must make findings of fact upon the Appellant's claim to clan membership of the Reer Faqi, and thus the Reer Hamar, and thus the Benadiri; which claim lies at the heart of his asylum appeal. I must do so bearing in mind the applicable low standard of proof, having stood back and looked at the evidence in the round. For the following reasons I am not satisfied, even on the low standard of proof applicable that the Appellant is a member of the clan that he claims. The objective evidence is quite clear on one fundamental point, that Somali society is clan based. Members of a clan can be expected to know of the clan to which they belong, and of the affiliations of the clan to which they belong, although in the case of the Benadir, not all would know all of the sub-groups of the Benadir. Although the Benadir do not place quite the same emphasis on genealogical descent as the other Somali clans they are still a clan based society.

5 i 17. I therefore find inconsistent with the claim to be a member of the Reer It' ~ Faqi, and inconsistent with the objective evidence, the fact that the Appellant named only three sub-clans of th~ Reer Hamar correctly, and incorrectly included amongst their number the Ashraf. 18. I also found inconsistent with, that claim the fact that the Appellant was unable to name a single sub-clan to the Shangam [Q15]. Further that the Appellant was apparently at the date of hi~ interview unaware that inter marriage between light skinned Benadir and dark skinned Benadir does not generally take place [Q1617]. Further that the Appellant was unable to name any town to the south of Mogadishu at interview, yet referred to Kismayo in evidence to me [Q7]. I reject the Appellant's claim to have failed to understand the question about intermarriage; it was essentially asked twice, and he did not seek any explanation of it at the time. 19. I take into account of course the evidence offered to me by Mr Sadik, who also claimed to be both the Appellant's great-uncle, and a member of the Reer Faqi. He also told me that the Ashraf were one of the clans of the Hamar. When challenged in cross-examination on this point he told me that he knew only that the Ashraf were one of the Benadir clans, and that he did not know any more than that. 20. There are significant inconsistencies and implausibilities to the Appellant's account of his experiences in Somalia, and thus why he fled. In particular I find inconsistent the Appellant's claim that his family were Reer Faqi, and financially well off in Somalia and yet were untroubled by any other clan or militia until That evidence is neither consistent with Mr Sadik's claim that he had to flee Somalia in 1994, nor with the objective evidence as to the difficulties faced by the minority clans in Somalia since the civil war began in Nor was the Appellant able to offer any explanation for why persecution only commenced in I find inconsistent the content of the Appellant's witness statements and interview as to when his family were visited and robbed by the militia,

6 '110 with his evidence to me that starting in 2000 there were up to ten occasions when this.occurred. fit 22. I find inconsistent the claim contained in the Appellant's witness statem.ent that a shot was initially fired at his father at close range but missed, and his denial in evidence to me that any bullet fired at his father missed him. The Appellant did not just fail to come up to proof in this respect he disowned #13 of his witness statement. 23. I find inconsistent the Appellant's claim that his eldest sister was the subject of multiple rapes, with his claim that he, his mother and his other sisters were left unharmed. He accepted that the sisters who were untouched were over fifteen. He had no explanation for why his eldest sister was supposedly singled out. 24. I find inc~nsistent the Appellant's evidence of the attack upon the family and the business in 2000, with his claim that the family were able to remain in possession of their own home until the end of 2001, and indeed, that the IAppelJant was later able through an uncle to sell that home for. ' US$5, I find inconsistent the Appellant's evidence to me as to what happened at the end of 2001, with the account given in his witness statement and at interview. In evidence to me the Appellant initially said that he had gone to the market with his uncle, and returned to the family home, before the "problem occurred". He accepted that there was a three day warlbattle in the area around the house, and said that no-one was hurt in it. Asked how he knew that he said it was because he was there in the family house at the time. Although the Appellant later returned to his original account, this passage of the evidence was quite different from that original account, and would offer no explanation for, or indeed opportunity for, the separation of the Appellant from members of his family. 26. Standing back and looking at the evidence in the round I am not satisfied that the Appellant has told me the truth about his experiences in Somalia,

7 I 27. or the events that led up to his leaving Somalia. I reject his account of past persecution of his family in Somalia as a fiction., The claim to clan membership is not dependent upon my acceptance of the remainder of the Appellant's evidence. Nevertheless the damage to the Appellant's general credibility,occasioned by my rejection of that account is a material factor that I must take into account in weighing his evidence upon the issue of clan membership. Whils~ I do so, it is particularly the answers given at interview that lead me to find that although the Appellant is indeed a speaker of Somali, and is probably a citizen of Somalia, that he is not a member of the minority clan that he claims as his own. In the light ofmr Sadik's evidence, and the inconsistency between it and the objective evidence I find that I am not able to place any significant weight upon Mr Sadik's evidence. Whilst Mr Sadik may be a relative of the Appellant, I make no finding to that effect. If he is, then I am not satisfied that either are members of the Reer Faqi, or the Benadir. I place no weight upon the content of the letter said to be from Mr Abukar Sadik. 28. It follows therefore that the Appellant's asylum appeal fails, and I dismiss it. Human Rights Appeal In human rights appeals the burden of proof is upon the Appellant to show that there has been an interference with his human rights. If this is established and the relevant Article permits, then it is for the Respondent to establish that the interference with those rights is one that is justified. Save in the case of Article 3, I am not permitted to take into account events or facts arising after the Respondent's decision. The standard of proof although expressed as whether there are substantial grounds for believing the evidence is effectively the same as that which applies to asylum appeals Kacai [21 May 2001 starred determination]. In submissions the Appellant relied upon his rights under Articles 2, 3 and 5. It was accepted that the human rights appeal stood or fell with the asylum appeal in the sense that it was dependent upon the Appellant's

8 1 I credibility and the findings of fact that would detennine the asylum appeal. Having r~viewed the matter independently I do not consider that any other Articles are engaged by this appeal, and I accept the concession as one that was properly made. 31. In my judgement, for the reasons given above, the Appellant has failed to discharged the burden of proof that lies upon him to demonstrate a real risk of a breach of either his Article 2, 3 or 5 rights upon any return to Somalia. I therefore dismiss the appeal. Conclusions 32. On the Asylum appeal; the appeal is dismissed. 33. On the Human Rights appeal; the appeal is dismissed. Jonathan Holmes Adjudicator 26 August 2003